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Counts v. Neven

United States District Court, D. Nevada

July 22, 2014

KENNETH COUNTS, Petitioner,
v.
DWIGHT NEVEN, et al., Respondents.

ORDER

JENNIFER A. DORSEY, District Judge.

Before the court are Kenneth Counts's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (#1) and respondents' answer (#22). Having thoroughly and thoughtfully considered this matter, the court finds that relief is not warranted and denies the petition.

A. Procedural History

In state district court, petitioner Counts was charged with conspiracy to commit murder and murder with the use of a deadly weapon. Ex. 3 (#23). After a jury trial, Counts was found guilty of conspiracy to commit murder and found not guilty of murder with the use of a deadly weapon. Ex. 22 (#24). After the verdicts, on February 11, 2008, the prosecution filed a notice of habitual criminality pursuant to Nev. Rev. Stat. § 207.010. Ex. 23 (#24). The state district court held its sentencing hearing on March 20, 2008, and the judge decided to adjudicate petitioner as a habitual criminal. Ex. 29 (#24). He was sentenced pursuant to the small habitual criminal statute, Nev. Rev. Stat. § 207.010(1)(a). The judge imposed a prison sentence with a minimum term of 8 years and a maximum term of 20 years. Ex. 30 (#24).

Petitioner appealed, and the Nevada Supreme Court affirmed. Ex. 39 (#24). Mr. Counts then filed a post-conviction habeas corpus petition in the state district court, Ex. 52 (#25), which denied the petition. Ex. 63 (#25). Counts appealed, and the Nevada Supreme Court affirmed. Ex. 78 (#25). Petitioner Counts then commenced this action.

B. Habeas Relief in Federal Court

Congress has limited the circumstances in which a federal court can grant relief to a petitioner who is in custody pursuant to a judgment of conviction of a state court.

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). "By its terms § 2254(d) bars relitigation of any claim adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter , 131 S.Ct. 770, 784 (2011).

Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, § 2254(d)(1); Williams v. Taylor , 529 U.S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, § 2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, § 2254(d)(2).

Richter , 131 S.Ct. at 785. "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Id . (citation omitted). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree' on the correctness of the state court's decision." Id . (citation omitted).

[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in ...

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